Volume 5, Number 5
Nov 1981

For Activist Conservators: Copyright

A cross-disciplinary paper was presented in the documentation
session at the AIC meeting in May: Reid A. Mandel. "Copyrighting Art
Restorations." Bulletin of the Copyright Society of
U.S.A., April 1981: 273-304. (The Society is at 40 Washington
Square South, New York, NY 10012, and that issue costs $6.00.)

The 1976 Copyright Act makes it possible, the author argues, for
private conservators or museums to copyright any work of art which
has been significantly altered during restoration, as by
reconstruction of lost parts of a prehistoric vase or a damaged
painting, Whether or not the conservator also owns the object,
copyright gives them the right to authorize display, reproduction
and the preparation of derivative works. It does not give them any
control over storage conditions, however. The author speaks:

"Their inability to protect works after they have left their
hands is a source of tremendous frustration to conservators. . . .
Copyright offers a means of control- ling the treatment a work
receives, . . . The rights which are available under American law
would be warmly embraced by conservators, specifically the rights to
authorize display, reproduction, and the preparation of derivative
works [i.e., future restorations].

"With this power [the right to authorize the public display of a
fine art work], conservators could prevent mistreatment of a work by
refusing to authorize its public display under harmful conditions,
such as exposure to klieg lights during television broadcasts,
Similarly, under the right to authorize reproductions of a work,
conservators could insure the safety of the methods used.
Conservators could augment their powers under these rights by
contract with their clients, too. (Footnote: The reproduction is set
forth in section 106(1) of the 1976 Copyright Act. The possibility
of modifying these rights by contract is discussed in House Report,
at 79.)

"Since a restoration which effects significant alterations is a
derivative work, any restoration is a derivative of prior
restorations if it contains elements added during the latter. The
right to authorize derivative works empowers a conservator to
require that subsequent restorations of a work he has treated be
performed by certified conservators. As argued earlier, restoration
by a trained and certified conservator should be deemed fair use,
but restoration by unqualified individuals would be an infringement
and this the conservator could prevent. She may also prevent the
wrongful attribution of her work, which permits her to suppress
schemes for forgery and palming-off involving works she has
restored."

Whether bookbindings and book restorations are considered
copyrightable is not clear from the article. They would presumeably
be covered by the section on utilitarian objects, p. 291-2, which
seems to say that a useful object is not copyrightable, even if it
is also artistic or graphic, unless the artistic or graphic features
"can be identified separately from, and are capable of existing
independently of, the utilitarian aspects of the article." Does this
mean that a rebacked book, or a restored book with a new leather
cover, could be copyrighted only if the graphic and artistic aspects
of the cover--the leather with its tooling or design, headbands,
title, just proportions, and so on--were separable from the handy,
protective boards and hinges? Does it mean that a leaf or an entire
textblock, made whole by leafcasting and the other arts of the paper
conservator, would not be copyrightable because the result was
useful as well as beautiful? Or would the existing law on copyright
of books as graphic objects cover this case', and extend the sane
protection to the cover as it does to the text itself? Or would the
law on copyright of designs for publishers' books and book jackets
apply?

The footnotes are interesting because they quote conservation
literature as much as they do the law, and even quote from the AIC
Code of Ethics.

The new law does not require that a copy of each art work be
deposited to secure the copyright, but it does require deposit of
two copies of each published book. Here again the question arises:
Where does one draw the line between the rare book as unique
cultural or historic artifact, and the replaceable book that is one
of many identical copies produced by a publisher?